James Collins v. Ron Barnes

Filing 35

MINUTE ORDER (IN CHAMBERS) ORDER TO SHOW CAUSE by Magistrate Judge Alka Sagar. Petitioner is ORDERED TO SHOW CAUSE, within fourteen (14) days of the date of this Order, why the Court should not deny his Motion to Amend his Petition to include a purportedly exhausted claim involving inconsistent verdicts. (See Order for complete details) (Attachments: # 1 Notice of Dismissal (Blank)) (afe)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV-13-3006 - GW (AS)

Title

James Collins, Petitioner v. Ron Barnes, Respondent.

Present: The
Honorable

Date

September 11, 2014

Alka Sagar, United States Magistrate Judge
Alma Felix

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

N/A

N/A

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE

On April 30, 2013, Petitioner James Collins (“Petitioner”) filed a Petition for a Writ of Habeas
Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (“Petition”) (Docket Entry No. 1). On
September 16, 2013, Respondent filed an Answer to the Petition (Docket Entry No. 13).
On November 18, 2013, Petitioner filed a “Motion for Stay and Abeyance” of his federal petition
so that he may exhaust an issue relating to inconsistent verdicts (Docket Entry No. 19). Petitioner asserted
that contemporaneous convictions for shooting at an inhabited dwelling (under an aiding and abetting
theory), and for accessory after the fact, are logically inconsistent and sought a stay pursuant to Rhines v.
Weber, 544 U.S. 269 (2005) (Id.). On January 24, 2014, the Court issued an Order explaining that a stay
pursuant to Rhines is only available if the Petitioner demonstrates that “he had good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics” (Docket Entry No. 22). Rhines, 544 U.S. at 278
(emphasis added). The Court found that Petitioner had not met his burden to establish that his convictions
were logically inconsistent, and thus had not demonstrated that the claim he sought to exhaust was
potentially meritorious, as required by Rhines. The Court directed Petitioner to file a Supplemental
Statement, setting forth the bases supporting his claim that his convictions are logically inconsistent, and
thus that his request for a Rhines stay was made in order to exhaust a potentially meritorious claim. Rhines,
544 U.S. at 278.
On March 6, 2014, Petitioner filed his Supplemental Statement setting forth the bases for his
contention that convictions for shooting at an inhabited dwelling and accessory after the fact are logically
inconsistent (Docket Entry No. 25). On April 4, 2014, the Court denied Petitioner’s Motion for a Stay,
based on its finding that Petitioner had failed to satisfy his burden to show that his claim is potentially
meritorious and was therefore not entitled to a stay pursuant to Rhines (Docket Entry No. 27). The Court
ordered Petitioner to choose between three options: (1) voluntarily dismiss his action without prejudice,
pursuant to Federal Rule of Civil Procedure 41(a); (2) request a voluntary dismissal of his unexhausted
claim and elect to proceed on only his exhausted claims; or (3) dismiss his unexhausted claim and file a
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV-13-3006 - GW (AS)

Date

Title

September 11, 2014

James Collins, Petitioner v. Ron Barnes, Respondent.

motion for a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), overruled on other grounds by
Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). (Id.).
*

*

*

On April 4, 2014, Petitioner submitted a copy of an order issued by the California Supreme Court
denying a state habeas petition that Petitioner had filed on March 12, 2014 (Docket Entry No. 28).
Accompanying the state habeas denial, was Petitioner’s request that he Court allow him to amend his
Petition to include the inconsistent verdicts claim because, according to Petitioner, that claim was now
exhausted. (Id.). However, on April 24, 2014, Petitioner filed a Declaration in which he requested the Court
to “dismiss [his] unexhausted claim” and allow him to proceed on his “exhausted claims” (Docket Entry
No. 29). On May 5, 2014, the Court issued an Order directing Petitioner to clarify which of the two
contradictory courses of action he wished to pursue, that is, whether he wished to amend his Petition to
include the purportedly exhausted claim involving inconsistent verdicts, or whether he wished to proceed
with the claims in his Petition and not pursue the claim involving inconsistent verdicts (Docket Entry No.
30). Petitioner was ordered to file a response selecting one of these two options no later than June 4, 2014.
(Id.).

On May 27, 2014, the Court granted Petitioner’s request for an extension of time to file his Response
to the Court’s May 5, 2014 Order and ordered Petitioner to file his Response no later than July 21, 2014
(Docket Entry No. 32).
On July 9, 2014, the Court granted Petitioner’s second request for an extension to file his Response
to the Court’s May 5, 2014 Order and ordered Petitioner to file his Response no later than August 20, 2014
(Docket Entry No. 34). Petitioner was expressly warned that, “absent extraordinary circumstances, no
further extensions will be granted.” (Id.).
As of today, however, Petitioner has failed to respond to the Court’s May 5, 2014 Order or otherwise
indicate how he wishes to proceed with his Petition.

Accordingly, Petitioner is ORDERED TO SHOW CAUSE, within fourteen (14) days of the date
of this Order, why the Court should not deny his Motion to Amend his Petition to include a purportedly
exhausted claim involving inconsistent verdicts. Petitioner may discharge this Order by filing a Motion to
Amend his Petition and an Amended Petition or by filing a declaration indicating that he wishes to proceed
with the claims asserted in the Petition.

If Plaintiff no longer wishes to pursue this action, he may request a voluntary dismissal of this
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV-13-3006 - GW (AS)

Date

Title

September 11, 2014

James Collins, Petitioner v. Ron Barnes, Respondent.

action pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal form is attached for
Plaintiff’s convenience. Plaintiff is warned that a failure to timely file a response to this Order will
result in the Court’s denial of his Motion to Amend the Petition.

0
Initials of Preparer

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:

0

AF

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